Don’t Let Kennedy Be Kennedy

My opinion of Justice Kennedy is, by this point, a matter of public record. In short, his flair for the dramatic, middle-of-the-road and substantially unresolved politics, and sudden power combine to create a jurisprudence wholly bereft of principles, no matter what his apologists say, and a worrying tendency to depart from established law precisely when it matters most, and for bad reasons.

Thursday’s holding, in Citizens United v. FEC (pdf), was no different. By way of background, the bar on direct campaign contributions from a corporation’s general treasury was, until Thursday, ancient. Twenty years is a long, long time in law. The function of Citizens United, which permits corporations to donate to political campaigns without restriction, is to remake the legal landscape for no reason other than that Sandra Day O’Connor is no longer on the bench. Kennedy seems to acknowledge as much: nearly every citation to a controlling principle of law is to a dissent (Scalia or Thomas), or to a Kennedy concurrence. Make no mistake: this is a dissent which has, through the vagaries of politics, managed to find its way into governing law. Were we more inclined to resort to pejoratives, we might even call it “judicial activism.”

Characteristically, Kennedy’s majority opinion suffers from a surfeit of emotion, a certain sense of predestination, and a deficit of real logic. As Kennedy began his landmark abortion opinion (Gonzales v. Carhart, 550 U.S. 124 (2007)) with a grisly, in-depth explanation of abortion procedures that left no doubt about his feelings on the subject, so his opinion in Citizens United puts its author’s politics immediately on display:

Here, the lack of a valid basis for an alternative ruling requires full consideration of the continuing effect of the speech suppression upheld in Austin. (p. 12)

In a novel, we’d call this foreshadowing; in a Supreme Court opinion, it’s called “assuming your conclusion.”

For, indeed, the conclusions that corporations “speak” in any meaningful way, and that regulating them is therefore “speech suppression,” are not obvious. Excise citations to cases about the importance of the press, disingenuously billed as describing the importance of corporate speech ((pp. 25-26); a distinction that Scalia addresses but Kennedy ignores), and we’re left with an opinion that assumes but fails to explain why corporate speech matters as much as personal speech (pp. 23, 27). It should not.

The First Amendment exists for two reasons: to ensure a robust exchange of ideas, and to encourage and validate personal expression. The first rationale permits (or should permit) regulation, the better to encourage a free and fair marketplace of ideas, but the second does not. Further, because the extra protections provided by the second rationale are tied to notions of personal liberty, they ought not to apply to entities that — like corporations — are emphatically not capable of personal expression.

True, corporations have interests that deserve to be heard. But individual citizens are entirely capable of representing corporations in their own capacities: letting the same persons double their representation, and finance their speech with corporate coffers, creates a distortionary effect that ought to raise concerns about the integrity and representative quality of the marketplace of ideas.

This argument is not novel; nor is it “liberal.” It’s an exercise in responsible line drawing, drawing inspiration from a pointedly conservative Supreme Court justice:

Extension of the individual freedom of conscience decisions to business corporations strains the rationale of those cases beyond the breaking point. To ascribe to such artificial entities an “intellect” or “mind” for freedom of conscience purposes is to confuse metaphor with reality.

Pacific Gas & Elec. Co. v. Pub. Util. Comm’n of California, 475 U.S. 1, 33 (1986) (Rehnquist, J., dissenting).

Shmaltzy comparisons to Mr. Smith Goes to Washington aside (seriously; p. 56), Citizens United was not a case about whether to let certain opinions be heard. Corporations will have their voices heard through their shareholders, their management, and their customers. This case was about whether to let some citizens exploit corporate alignments to drown out other, less fortunate voices. The First Amendment is about people, and when people are not involved, and personal liberty is not at stake, the government has an obligation to facilitate, through content-neutral rules and regulations, the easy exchange of ideas and the concomitant search for truth. To let corporate “liberty” defeat the public interest, as expressed and ratified by the people’s duly elected representatives, is, as is so often the case in Kennedy’s cases, to put style before substance.


  1. I’ve been curious as to how reasonable it is to think that corporations have constitutional rights at all. The key point here is that corporations aren’t just free associations of individuals, but are a certain kind of contract between a group of individuals and the government which the government privileges in certain ways (limited liability, among others).

    How would the Court deal with the following: suppose that a bunch of people on food stamps and other sorts of welfare were giving $2500 each to political candidates each election cycle. Further, suppose that their giving tends to go to just those politicians who favor more generous welfare. It doesn’t strike me as unconstitutional for Congress to stipulate that if you’re receiving certain kinds of aid from the government then you have to abide by stricter-than-usual restrictions on political giving. People-on-food-stamps qua people-on-food-stamps don’t have free speech rights, and if there’s a rational basis for limiting their speech then it’s allowable. The government can require that people not make use of government assistance to engage in political speech. Does that sound right? How are the cases different? Wouldn’t the Court’s decision on this one be basically the other way around?

  2. I would like to see a (tongue-in-cheek) analysis of what other rights are guaranteed to corporations in keeing consistent with the logic of this opinion.

  3. I shall put some thought in to that, Kris :).

    And Gotchaye, I’m going to have to delay a reply, because that’s a fairly involved and interesting question too…

  4. You know, I’m having a hard time getting worked up about this. The outcome’s not exactly to my policy preference, but… I just have this “Meh, bummer” feeling about this ruling.

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